Counsel General’s legal risk guidance

1. It is fundamental to the rule of law that everyone is subject to the law. The Ministerial Code for members of the Welsh Government* affirms this by requiring that the code be read against “the background of the overarching duty on ministers to comply with the law, including international law and treaty obligations”.

* "Members of the Welsh Government" - these are the First Minister, the Welsh Ministers, the Counsel General and deputy ministers (section 45 of the Government of Wales Act 2006) and the code itself provides that it is guidance for those ministers.

2. Government officials (including, but not confined to, lawyers) have a key role in helping ministers meet the overarching duty. The Civil Service Code recognises officials’ obligation to act with integrity, honesty, objectivity and impartiality, and lawyers are also subject to professional obligations to uphold the constitutional principle of the rule of law, and the proper administration of justice.

3. It is for government lawyers to advise how best to achieve policy or operational objectives lawfully by identifying legal risks, and how they might be mitigated. This assists ministers in making policy and operational decisions, helping them to meet their overarching obligations to act within the law while fulfilling their policy objectives.

4. This guidance is for all lawyers advising the Welsh Ministers on whether decisions proposed to be taken in the exercise of their functions are lawful. It sets out a framework, and standard terminology, for assessing legal risk, and applies to advice given to officials as well as to ministers directly.

5. ‘Legal risk’ means the risk that a decision or act is unlawful. Ministers will want to understand the nature and scale of a range of risks, including legal risks, before taking decisions. They need to be well informed about the chance of successful legal challenge, and clear about the consequences of such a challenge.

6. Legal risk is to be assessed by reference to the likelihood of a legal challenge being successful, if one were brought. The question to be asked is, in the event that a challenge was brought before a court (however unlikely that may be), what the court would be likely to decide.

7. As a starting point, it is necessary to analyse the legal arguments for and against the proposed decision being lawful and weigh up the strengths and weaknesses of the respective arguments. This is not always straightforward. Ministers will sometimes need to take decisions at a point when the legal or factual position is uncertain – for example, when exercising powers for the first time, when formulating novel policy or when the state of the relevant law is uncertain or untested. Policy or operational input will usually be necessary to make this assessment, for example, to understand the rationale for a policy or decision and the evidence available to support it. In general terms, well-made, carefully justified and evidence-based decisions are likely to carry a lower risk of successful legal challenge, and conversely, decisions for which the justification or supporting evidence is weak or unclear are likely to carry a higher risk of successful legal challenge.

8. The Ministerial Code also affirms the duty on ministers to comply with international law. International law principally applies between states; however, action proposed by the Welsh Ministers, or inaction by them, may have implications for the UK’s compliance with such obligations and may have legal consequences for the Welsh Ministers. Under section 82 of the Government of Wales Act 2006, the Secretary of State has various order powers to intervene to restrain, reverse or require action by the Welsh Ministers to avoid what the Secretary of State considers would be an incompatibility with the UK’s international obligations. These potential consequences, where relevant, should be addressed in legal advice in addition to advice on whether there is a tenable legal argument in terms of compatibility with international law.

9. Legal advice should address the strengths of the respective arguments for and against the proposed decision or course of action being lawful and consider what the relevant court or tribunal is more likely to decide. The table below sets out the different circumstances that can arise, ranging from situations where the risk of a successful legal challenge is low to situations in which there is no tenable legal argument that a proposed decision or act is lawful.

10. A legal argument is tenable if a lawyer representing the government could properly advance that argument before a court or other tribunal in accordance with their professional obligations. If there is no tenable legal argument that could be put before a court in support of a proposed decision or act, then the advice must be that it would be unlawful and should not proceed.

11. Where an advising lawyer has concerns there is no tenable legal argument, the matter must be referred to the relevant legal Deputy Director who will engage with the Director of Legal Services where such a decision is proposed (where advising on the proposal involves a matter of statutory interpretation or a constitutional matter that is novel or controversial, the views of the Office of the Legislative Counsel should also be sought). This needs to occur in sufficient time ahead of advice being given to ministers so that the matter can be properly addressed.

12. If it is proposed to proceed despite advice that it would be unlawful to do so (because it is not supported by a tenable legal argument), the advice of the Counsel General must be sought immediately. Such a situation may also raise accounting officer issues and discussion should take place with the relevant policy team with a view to informing the Permanent Secretary at the earliest opportunity.

13. In such cases lawyers should assist in the process of identifying other lawful options.

14. If there is a tenable argument that a decision or act is lawful but there is nevertheless considered to be high or medium (high) legal risk, the issue must be referred to the relevant deputy director within the Legal Services Department.

15. In such cases there is a presumption against proceeding and other options should be considered. However, there will be circumstances in which it may be appropriate to proceed having considered (1) the likelihood of a legal challenge being brought and (2) the impact of a successful legal challenge or of not proceeding – and the legal advice should assess both of these issues.

(1) Likelihood of a legal challenge being brought

16. Whether a decision or act is likely to be challenged is an important element of the advice for ministers to consider where there is at least a tenable legal argument that the decision or act is lawful.

17. Policy or operational officials may be in a better position than lawyers to assess who, if anyone, might want to challenge a proposed decision or act and the likelihood of this occurring - and lawyers should seek their input on this.

18. It is also important to consider the various routes by which a decision may be challenged and the timeframe, including the possibility of interim relief.

19. Identifying the potential for challenges is also necessary to understand the possible impact of the decision being taken.

(2) Impact of successful legal challenge or of not proceeding

20. Understanding the potential impact of a decision to do something, or indeed of a decision not to do something, is also to be taken into account. Legal advice must identify and explain the potential remedies if a challenge to a decision to proceed were to succeed as well as other negative consequences, such as reputational damage.

21. A challenge, even if ultimately unsuccessful, may still have consequences such as adverse publicity, delaying implementation of a policy, the granting of interim relief or ministers undertaking to the court not to proceed with a policy until the court has decided the matter, uncertainty as to the legal position and the diversion of resources to defend it.

22. Successful challenges may have additional consequences, including financial ones (e.g. damages) and the quashing of decisions or legislation. Such decisions or legislation may have to be re-made, and other measures may be necessary to undo the effects of unlawful actions (e.g. schemes for the repayment of unlawful charges). Broader consequences may include reputational damage, administrative uncertainty or regulatory confusion, and inability to properly enforce the law.

23. Conversely, the advice should also (with appropriate policy input) address the consequences should the minister decide not to proceed with what is proposed. These may be very significant.

Mitigations: reducing legal risk and its impact

24. Where a proposal carries high or medium high legal risk, it is also part of the lawyer’s role to advise on any possible alternative, lower risk, approaches that might achieve some or all of the proposal’s objective, or on any other ways of mitigating the risks. This will often involve working closely with officials to better understand the objective as well as creative thinking. Mitigations (or potential ones) might involve adapting proposals, implementing them in a particular way, seeking additional evidence or delaying the decision or implementation (for example until the outcome of a relevant case or to give those affected a longer-lead-in period to adjust to the new position).

25. Ultimately it is for the minister to decide whether to proceed having taken into account:

1. the likelihood of a legal challenge to what is proposed being successful, if one were brought
2. the likelihood of the legal challenge being brought
3. the impact of a legal challenge succeeding
4. the impact of not proceeding with what is proposed, and
5. any possible alternative courses of action or other mitigations.

26. There may also be occasions where ministers decide to proceed despite legal advice concluding that there is only a tenable legal argument that their decision or act is lawful. Examples include, but are not limited to, situations where an area of law is particularly uncertain or unsettled, where a fundamental point of principle is at stake requiring clarification by the courts or where the benefit of proceeding plainly and clearly outweighs the risk a decision or policy may be unlawful or successfully litigated. However, as this means there is a high risk that the Welsh Ministers may be in breach of the law:

1. this should be a last resort and only pursued when all other options, including alternative courses of action or mitigating actions, have been considered and discounted
2. despite a tenable legal argument existing it may nevertheless still be inappropriate to proceed in some cases – for example, in situations where the impact of a decision is that a person’s fundamental rights are significantly undermined, particularly where the proposed policy or action is unlikely to be challenged before a court or otherwise subject to judicial scrutiny
3. the impact of a successful challenge, and the impact of not proceeding, must be fully taken into account and made clear to ministers. Ministers must also be given clear advice that a tenable legal argument is one that Ministers are significantly more likely to lose if challenged, and
4. Counsel General should be notified before the decision is taken.

27. Assessing legal risk should form an integral part of policy analysis and the appraisal of options, and it should be communicated accurately and accessibly to ministers. The legal advice section of submissions should be clear and succinct (even if greater detail is included in an annex).

28. To achieve consistency, transparency and clarity in the assessment and presentation of legal risk, lawyers should use the framework below when giving legal advice, for example by concluding that “There is a Medium (Low) risk of a successful challenge if one were brought - there are good legal arguments that are stronger than the counter arguments”. Lawyers should complete the legal advice section of a Ministerial Advice, and any subsequent substantive changes to the remainder of the document must be shared with the advising lawyer to check that the legal advice remains accurate.

29. Legal advice may change over time as relevant facts and evidence are explored, proposals developed and arguments refined, as well as in response to new case law or evidence. At the early stages of policy development, legal advice may need to be in broader terms, and it may need to be made clear that it is provisional advice that will be revisited as the details of a proposal become settled. Lawyers must use their professional judgement to reassess and reconfirm or change their legal risk assessment over time, and to consider the extent to which legal risk requires detailed explanation.

30. When the legal or factual position is unclear, this may affect the level of legal risk, and the appropriate options as to how ministers could decide to proceed in the specific circumstances should be clearly articulated within the legal advice.

31. Legal advice on whether provisions of a bill proposed by a member of the Welsh Government is within the legislative competence of Senedd Cymru is given within a different constitutional context.

32. Section 112 of the Government of Wales Act 2006 sets out the Attorney General’s powers to challenge legislative competence, and also provides for the Counsel General to refer the question whether a bill, or any provision of a bill, would be within the Senedd's legislative competence to the Supreme Court for decision. In addition, under the standing orders of the Senedd, the member in charge of a bill (as well as the Llywydd) must make a statement to the Senedd saying that in the member’s view the provisions of the bill are within the Senedd’s legislative competence.

33. The member in charge (either the relevant member or the Counsel General) will make this statement based on legal advice. In consequence, although the issues referred to in this guidance may be relevant, in providing advice in these circumstances the legal advice must state whether the bill is more likely than not to be within the legislative competence of the Senedd.